17 Ind. App. 652 | Ind. Ct. App. | 1897
Appellee recovered a judgment for damages resulting from fire, alleged to have been negligently started by appellant, and negligently permitted by appellant to go upon and destroy appellee’s property. The complaint ivas held good against a de
Appellant assigns as error the overruling of the demurrer to the complaint and the motions for a vemre de novo and for judgment.
Appellant’s counsel say, in their brief, they think the complaint sufficient, and do not discuss the ruling on the demurrer.
It is insisted that the special verdict is defective in that the jury failed to find that appellee was free from fault or that appellant was guilty of any negligence. Upon these subjects the special verdict is as follows: “Int. 3. Had the defendant, by its employes, cut grass and weeds growing on its right of way north of its track adjacent and adjoining the said land of plaintiff, leaving it remain there for some days before the fire? Ans. Yes. Int. 4. Did the defendant carelessly and negligently permit and suffer dry grass and rubbish and weeds and other combustibles to accumulate and remain along and upon its rights of'way adjacent and adjoining the said land of the plaintiff at the time of said fire? Ans. Yes. Int. 5. If you answer yes to the foregoing interrogatory, then did sparks escape from the defendant’s locomotive engine attached to a freight train going east on its said railroad, on or about the time set forth in the plaintiff’s complaint, and set fire to said dry grass, weeds, rubbish, and other combustible material? Ans. Yes. Int. 6. If you answer yes to the preceding interrogatory, did said fire, through the medium of such combustible materials, without any fault or negligence of the plaintiff, escape and run off from said defendant’s right of way to the plaintiff’s said land and burn and
It is argued that interrogatory six and the answer are vague, and that the answer is a conclusion and not a fact.
The interrogatory embraces not only more than a single fact, but also calls for a conclusion, and should not have been submitted to the jury, although it is not available error.
When it is shown that combustible material, liable to be set on fire by sparks from passing locomotives, was allowed to accumulate and remain upon appellant’s right of way, that it was an exceedingly dry time, that there was a “brisk wind” blowing towards appellee’s land which adjoined appellant’s right of way, that sparks from a passing engine set fire to such material on appellant’s right of way, from which place appellant negligently permitted it to escape to appellee’s land and destroyed his property; such facts show that appellant was negligent, and that such negligence was the proximate cause of the injury to the appellee. Chicago, etc., R. W. Co. v. Burger, 124 Ind. 275; Pittsburg, etc., R. W. Co. v. Jones, 86 Ind. 496.
It is argued that the verdict fails to show that the appellee did anything to prevent the burning of his
In Gulf, etc., R. W. Co. v. Johnson, 54 Fed. 474, it is said: “It is very well settled that it is not contributory negligence for the occupant of land adjoining a railroad to leave it in its natural state; and a farmer using his premises in the ordinary and customary manner is not guilty of contributory negligence for failing to resort to special or extraordinary precautions to prevent the destruction of his property from fire happening through the negligence of a railroad company.” See Pittsburg, etc., R. W. Co. v. Jones, supra; Philadelphia, etc., R. R. Co. v. Hendrickson, 80 Pa. St. 182, 21 Am. Rep. 87.
It does not appear that appellee was using his property other than in the ordinary and usual way. It was seeded to clover and grass, which-had been cut, and was there in windrows. The finding shows the damage was not limited to the burning of the windrows, but also the destruction of the roots of "the clover and grass. He had the right to enjoy his property in the ordinary manner. And while he was charged with the duty of saving his property from destruction if it could be saved, the law does not compel him to stand over it to protect it from the negligence of the appellant. The fact that the special verdict fails to show that appellee did anything to prevent the escape of the fire to his premises cannot be construed to be a failure to find his freedom from fault. It appears, from the special verdict, that the appellee did expend labor in suppressing the fire. It thus appears he did make an effort to save his property from destruction.
The appellee was not bound to use unusual pre- • cautionary measures to protect his property from in
Thus it is said in Chicago, etc., R. R. Co. v. Kern, 9 Ind. App. 505, “The owner of land, in such cases, is not bound to employ the unusual precautionary, measure of removing the dry grass and stubble on his land adjacent to the right of way of the railroad, in anticipation of the fact that the railroad company may negligently set fire to the inflammable material on the right of way, or that the company may negligently permit such fire to escape from the right of way onto his premises.” Chicago, etc., R. R. Co. v. Barnes, 2 Ind. App. 213.
Taking the special verdict as a whole, we think it is sufficient to sustain the judgment in appellee’s favor. We find no error in the record for which the judgment should be reversed.
Judgment affirmed.